9911796707
TMI Blog2025 (2) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... on from service recipients as appearing in Form 26AS of Income Tax was collected by Revenue. Service contracts were also collected by Revenue along with invoices. During investigation, several statements were also recorded. During investigation appellant through letter dated 29.03.2016 submitted details of the capital goods on which cenvat credit was availed. During investigation appellant had deposited service tax amounting to Rs.1,11,77,605/-. The said investigation culminated in issue of show cause notice dated 29.01.2018. Through the said show cause notice, service tax demand of Rs.5,05,21,843/- was raised for the period from July 2012 to March 2016 invoking extended period of limitation under sub-section (1) of Section 73 of Finance Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.1,11,77,605/- deposited by the appellant. The original authority imposed a penalty of Rs.3,93,44,238/- under Section 78 of Finance Act, 1994 and also ordered recovery of service tax of Rs.38,73,395/- under Section 73A of Finance Act, 1994. Aggrieved by the said order, appellant is before this Tribunal. 2. Heard the learned counsel for the appellant. He has made the following submissions:- a) Revenue has not discharged its responsibility to identify the nature of service rendered by the appellant to ascertain the taxability of service and that it has not established from the allegations that any service was provided. The demand itself is not sustainable. b) The service tax demand is raised without identity of service recipient and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing all invoices and works contract documents with him he has calculated service tax payable on works contract service without providing any abatement as required by the said Rules and calculated service tax on the gross amount received by the appellant on the basis of information available in Form 26AS and the same is not in accordance with law. f) In respect of the allegation that service tax was collected by the appellant but was not deposited, he has submitted that no information about the person from whom service tax was collected and how much amount from an individual is collected and when it was collected and for rendering which service has not been stated anywhere in the show cause notice for the appellant to defend their case. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the impugned order. 4. We have carefully gone through the record of the case and submissions made. On perusal of the record, we note that the entire demand is based on the information available in profit and loss account and receipts as per Form 26AS. The nature of service rendered by the appellant and the quantum of amount received for rendering a particular service are absent in the proceedings. The value of service is to be determined in accordance with Section 67 and Service Tax (Determination of Value) Rules, 2006 and the same is absent in the entire proceedings. We further note that this Tribunal in the case of Toshika International Ltd. (supra) has held in para 6 as follows : - "6. We find that in this case, the only basis for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal order in the case of Deltax Enterprises (supra) relied upon by the appellant, it is held as follows:- "4. Admittedly, the appellant did not maintain detailed accounts for all the transactions undertaken by them. They have availed the provision of Section 44AD of Income-tax Act for filing returns. This formed basis for service tax demand as the income shown is much higher than the declared consideration for taxable service. We note that the appellants categorically asserted that they did not provide any other service other than those, the details of which have been submitted to the lower authorities. The Revenue also could not point out excess receipt on these contracts or the taxable service which gave them the consideration escaping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994 provides that where service tax is chargeable on any taxable service with reference to its value, then such value shall be the consideration in money charged by the service provider. Therefore, it is primarily important to determine the value on which service tax shall be levied on a specific percentage and such value should be value of taxable service. Clause (44) of Section 65B of Finance Act, 1994 has provided for definition of service and it has elaborately dealt with a list of activities which shall not be included in such definition. Further, Section 66D of Finance Act, 1994 has provided for negative list of services where activities covered by such negative list do not qualify to be taxable service. Therefore, it is clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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